Lu v. Frates, Et Al

Filing 11

Chief Judge Patti B. Saris: ORDER ON PLAINTIFF'S REQUEST FOR DEFAULT entered denying 10 Motion for Entry of Default and Motion to Assess Damage. Because it is not beyond the 90 days for service upon the defendants, Lu has time to complete service pursuant to Rule 4 and file a return of service. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
FRIEDRICH LU,

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Plaintiff,
v.
TIMOTHY FRATES, et al.,
Defendants.

Civ. Action No. 17-10518-PBS

ORDER ON PLAINTIFF’S REQUEST FOR DEFAULT
May 25, 2017
SARIS, C.D.J.
On May 3, 2017, Plaintiff Friedrich Lu filed a Request for
Default and Motion to Assess Damage.

See Docket No. 10.

Rule

55(a) of the Federal Rules of Civil Procedure requires that
default be entered by the Clerk when “a party against whom a
judgment for affirmative relief is sought” has “failed to plead
or otherwise defend and that failure is shown by affidavit or
otherwise ....” See Fed. R. Civ. P. 55(a).
Here, the record contains no evidence that service of
process was effectuated as to any of the parties named in the
Complaint.

Lu avers that he “sent processes for all defendants

to general counsel via the certified mail on Apr 3 previous.”
Mot. for Default J. at ¶ 5.

Referencing First Circuit case law1,

Lu states that the “Suffolk County Sheriff Department has a

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Lu's motion references Blair v. City of Worcester, 522 F.3d
105, 112 (1st Cir. 2008) (an affidavit denying agency, standing
alone, may suffice to overcome the presumption of proper service
created by the return of service).

standing policy that its general counsel will accept, through
certified mail, complaints against the office or its personnel)
(up to the sheriff him- or herself).”

Id. at ¶ 3.

Given these facts, service was inadequate under Rule 4.

To

the extent Lu attempted service by certified mail, it was
improper because there is no evidence that the mailed documents
included the notice and request for waiver of summons that must
be provided when service by mail is attempted.

See Rule 4(d)(2);

see also Media Duplication Servs., Ltd. v. HDG Software, Inc.,
928 F.2d 1228, 1233–34 (1st Cir. 1991) (service by mail is
ineffective if an executed waiver is not returned by the
potential defendant). Additionally, Lu has not shown that the
general counsel is an authorized agent of the defendants, and the
Federal Rules of Civil Procedure do not provide for service on a
person who is not an authorized agent simply by virtue of being
counsel for a state agency.
Lu has not demonstrated that he satisfied the procedural
prerequisites for default judgment because he has not filed a
return of service and the defendants have not waived service or
permitted service on their general counsel.

Notwithstanding Lu’s

reference to a Suffolk County standing policy, Lu has not met his
burden of proving timely and proper service of process.

The

plaintiff’s improper service matters because a federal court may
not exercise jurisdiction over a defendant unless proper service

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has been made.

Omni Capital Int’l, Ltd. V. Rudolf Wolff & Co.,

484 U.S. 97 (1987).
Lu filed his Complaint on March 31, 2017, and summonses were
issued at that time.

Pursuant to Fed. R. Civ. P. 4(m), “[i]f a

defendant is not served within 90 days after the complaint is
filed, the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.
Because it is not beyond the 90 days for service upon the
defendants, Lu has time to complete service pursuant to Rule 4
and file a return of service.
ACCORDINGLY, it is hereby ORDERED that Plaintiff’s Request
(Docket No. 10) for Default and Motion to Assess Damage is
DENIED.
SO ORDERED.
/s/ Patti B. Saris
PATTI B. SARIS
CHIEF UNITED STATES DISTRICT JUDGE

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